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Friday, 19 June 2009.
10 am
Prayers—read by the Lord Bishop of Bradford.
Surveillance (Constitution Committee Report)
Copy of the Report - Vol 1
Copy of the Report - Vol 2
Motion to Take Note
10.06 am
That this House takes note of the Report of the Constitution Committee on Surveillance: Citizens and the State (2nd Report, HL Paper 18).
Lord Goodlad: My Lords, the report was published in February this year after a lengthy inquiry, which commenced during the chairmanship of your Lordships’ committee by the late Lord Holme of Cheltenham. I speak on behalf of all members of the committee in paying tribute to the wisdom, assiduity and vivacity with which he chaired our proceedings. I also pay tribute to the work of the late Lord Bledisloe, who died recently; his scholarship, experience and attention to detail made an invaluable, and indeed memorable, contribution to all our proceedings.
I am grateful not only to members of the committee but to all those who gave evidence to us in this country, in Canada and in the United States of America. While the committee alone is responsible for its conclusions, those conclusions are based on the evidence submitted, and the witnesses played a crucial role in influencing them.
I thank our specialist advisers, Professor Charles Raab of Edinburgh University and Dr Ben Goold of Oxford University, and our legal adviser, Professor Andrew Le Sueur of London University. The contribution of the clerks has been beyond praise but their identities will remain, as always, shrouded in impenetrable mystery.
I am grateful to Jack Straw, the Lord Chancellor and Secretary of State for Justice, a regular witness before your Lordships’ committee, for co-ordinating and presenting to Parliament the Government’s response to the report, which was published on 13 May. Your Lordships’ committee published an analysis of that response on 7 June this year, which recites our various points of appreciation and of disappointment, together with the reasons for both.
The issues addressed in the report affect every citizen in the land and its publication occasioned widespread—indeed, perhaps unprecedented—media coverage, both in this country and elsewhere. In the limited time available, it would perhaps be helpful for the purposes of debate if I referred to the issues covered by the Government’s response, together with others to which Government and Parliament will return in the future, rather than dwelling in general and abstract terms on those considerations already rehearsed
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The committee made 44 recommendations. I shall, inevitably, mention but a few. We believe that the Regulation of Investigatory Powers Act 2000 should be amended to include judicial oversight of surveillance carried out by public authorities and that compensation should be paid to those who are found to have been subject to unlawful surveillance under the Act’s powers. We recommend that the Government should consider whether local authorities are the appropriate bodies to exercise RIPA powers and that, if they so continue, there should be a definition of the circumstances in which the use of these powers is appropriate. As the Minister will be aware, there has been massive public concern about the use of the powers in relation to rubbish and residential qualifications for education purposes.
We recommend that the Data Protection Act 1998 should be amended to make it mandatory for government departments to publish a privacy impact assessment before adopting new data collection or processing schemes and that the Information Commissioner should scrutinise and approve those assessments.
We recommend, inter alia, that legislation should be introduced to replace the existing regulations governing the National DNA Database to reassess which DNA profiles are retained and for how long. We welcome the Government’s decision now to reassess this matter, which is of immense public concern.
We recommend that the Government introduce a statutory regime for the use of closed circuit television and legally binding codes of practice for all CCTV schemes. We welcome the Government’s acceptance of the need for, and recent commissioning of, an independent appraisal of the effectiveness of CCTV. It is of astronomical expense, paid for by the taxpayer. We heard evidence from the police that, since most violent crime is unpremeditated, it does not deter violent crime and that car crimes are committed round the corner where there is no CCTV. I hope that the Government may revisit their objection to our recommendation of a statutory regime for CCTV.
I hope, too, that the Government will reconsider their decision not to allow the Information Commissioner power to inspect private sector organisations without their consent. As public service functions increasingly involve transfers of personal data across organisations and sometimes across other unintended boundaries, there is a widening anomaly in the application of the Data Protection Act 1998, about which many people are deeply worried. Those private sector organisations that successfully resist the Information Commissioner’s power to inspect may well be those with something quite serious to hide.
I hope that in his reply the Minister will be able to give your Lordships more details about how the Information Commissioner may be better empowered
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We recommend that the Data Protection Act 1998 should be amended so as to make it mandatory for government departments to publish a privacy impact assessment before the adoption of any new data collection or processing scheme and that the Information Commissioner should scrutinise and approve privacy impact assessments, which are a relative novelty in our jurisdiction but not in others.
We welcome the Government’s commitment to urge greater flexibility in the inspection work carried out by the Interception of Communications Commissioner and the Chief Surveillance Commissioner, as we recommended. Perhaps the Minister will wish to say a word about proposed future guidance to public authorities in this area and the future work of the Investigatory Powers Tribunal.
Realisation of the enormous increase in surveillance and data collection by the state and other organisations, and dissemination thereof, has now dawned on Parliament, on government, on the public and on those in the media who take an interest in these matters. It is seen by many people as a threat to our long-standing traditions, privacy and individual freedom. We have recommended that a parliamentary Joint Committee on the surveillance, data collection and distribution powers of the state should be established to scrutinise relevant legislation and practice. I think that that is an important recommendation in the light of terrorist threats and legislation that comes through without our really noticing it. I hope that the Government and Parliament may in due course come to share the view of your Lordships’ committee.
A key recommendation—perhaps, in a sense, a text—for today’s debate is contained in paragraph 144 of the report: namely, that privacy and the application of executive and legislative restraint to the use of surveillance and data collection powers are necessary conditions for the exercise of freedom and liberty, which has been won over many centuries, and that privacy and executive and legislative restraint should be taken into account at all times by the Executive, by government agencies and by public bodies, all of which—or nearly all—should be accountable to Parliament. That, in recent years, has self-evidently not been happening. I hope that today’s debate may make some contribution to its doing so in the future. I beg to move.
10.18 am
Lord Morris of Aberavon: My Lords, the Constitution Committee, of which I am a member, under the wise chairmanship of the noble Lord, Lord Goodlad, has delivered a monumental report. Our parliamentary system can be proud of it. The security of the state has to be guarded, and within this, the freedom of the individual has to be enshrined. I will not go into the detail of our 44 recommendations or the Government’s responses. Some are encouraging; some are frankly disappointing. In the name of the need to combat
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The knowledge of the world now about so many of our individual actions and lives is so totally different from how it was in the world in which we grew up, with a bringing together of so many strands of information about us already. How much more will be known in 10 or 20 years’ time? Is it all necessary? Are sufficient safeguards in place, in the form of the detail of legislation, judicial oversight and oversight by the various commissioners? Have the commissioners the powers and the resources to be proactive?
Only recently, at the Hay-on-Wye festival, Sir Richard Dearlove, who led the Secret Intelligence Service—MI6, so called—from 1999 to 2004, is reported as having attacked “the loss of liberties” caused by expanding surveillance powers and described some police operations as “mind boggling”. He feared the striking and disturbing invasion of privacy by the Big Brother state. These are the reported comments of the man in charge of the intelligence service during the September 11 attacks. They are indeed disturbing, coming from such a source.
He highlighted the fact that Scotland Yard has carried out more than 150,000 stop-and-searches since 2007, compared with fewer than 300 in Manchester. They may all be necessary, but I would need considerable persuasion of their proportionality in all parts of the country. I do not know whether the attention of the police inspectorate has been drawn to the disparity. One has to be eternally vigilant. I had some responsibility in this field as a law officer, but is the fear of terrorism being used now disproportionately to defend some of the actions of the government and public organs?
Since Roman times, it has been asked, “Who is to guard the guardians?” How do we explain the need for our National DNA Database to be the largest in proportional terms in the world? I know as a former constituency Member how popular are CCTV cameras with those who are afraid, but can we justify being world leaders again, with an estimated 4 million CCTV cameras? Is this an effective use of the £500 million of public expenditure which has been involved? During the 1990s, approximately 78 per cent of the Home Office crime prevention budget was spent on installing CCTV. These methods of surveillance have grown on us with hardly a murmur, so I welcome the Government’s support for a national body to oversee the use and deployment of CCTV.
The Regulation of Investigatory Powers Act, or RIPA, has been used in ways that were never intended, as an umbrella for all sorts of activities by public organs—it was mentioned by the noble Lord, Lord Goodlad. It was never envisaged—indeed, it was categorically denied by Home Office at the time—that it would apply to local authorities. Hence, local authorities were able to pursue all sorts of investigatory activities, from snooping into overfull dustbins to spying on the working of school catchment areas.
The string of Home Office junior Ministers who came before us were particularly unconvincing in defending the changed attitude of the Home Office. It
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I have touched on but a few of the areas of our concern. I summarise our main responses to the situation that we now find ourselves in. First, we need oversight, particularly judicial and by our commissioners. Secondly, there should be new roles and resources for the various commissioners that we have in place, particularly in scrutinising and approving private impact assessments. Thirdly, I feel particularly strongly that a parliamentary Joint Committee, mentioned by the noble Lord, Lord Goodlad, on surveillance and data powers should be established to, among other things, supervise what Sir Richard Dearlove claimed were “inadequate laws to regulate some surveillance powers”. The work of your Lordships’ Constitution Committee in this field is broadly done. Someone else must carry the baton. I find the Government’s response to this aspect of our report particularly disappointing.
10.27 am
Baroness Manningham-Buller: My Lords, I congratulate the Constitution Committee on this report, which is timely and thorough. I read through the doorstep of evidence and congratulate the committee on listening to it all. Some of it is well informed; some of it is not informed at all.
I shall concentrate on surveillance for national security purposes, but touch on the other matters, such as local authorities, where I share the views of the previous two speakers. In thinking about what I wanted to say today, I looked again at the European Convention on Human Rights. I had forgotten how it allows for interference with privacy in such a broad range of areas. I shall read them out to the House, if I may, to remind it:
“Everybody has a right to respect for his private and family life, his home and his correspondence ... There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law”—
I shall come back to that phrase—
- “and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms and others”.
That is pretty unrestrictive. I am not sure that I want my privacy invaded to protect my morals or anybody else’s.
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As I have said before in this House, I am concerned that the most intrusive powers of the state should be used only for the most serious crimes and threats in proportion. I hope that the House will forgive me if I sound a little didactic occasionally, because surveillance is used very sweepingly. I would define four main sorts of surveillance. In the most intrusive category, I would put, first, eavesdropping—the deployment and use of microphones in places where the individual or people whom they are targeted against would have a presumption of privacy—and, secondly, the interception of communications. The committee at one stage called this wire-tapping. No, no—that is an American phrase. In the UK we talk about very low-key interception of communications. Those two are the most intrusive techniques, and when I joined the Security Service in 1974 they were done without any legal basis. There was ministerial authority but no legal basis.
In 1985, roughly 30 years after the European convention, we got the Interception of Communications Act, which was welcome and which concentrated on those two surveillance techniques. When I joined in 1974, I was astonished—naively—that the state bugged people. It was not public knowledge then. I was rather shocked that we were listening to telephones and opening mail; this did not seem to be decent behaviour. However, what reassured me and kept me in the service was the degree of scrutiny, care and toughness with which those resources were applied for and deployed. In particular, from a very early age I was taught that they were to be deployed only if other methods of investigation were not available or had proved fruitless, and if the threat and necessity were sufficiently serious and high to warrant that intrusion.
I go back to my point on being in accordance with the law. After the fall of the Eastern bloc, when my service and SIS went to places such as Hungary, Poland and Czechoslovakia to advise them on creating democratically accountable security and intelligence organisations in a democracy, we told them all that they needed a proper legal base. They needed a proper law to cover what they were going to do. When it was clear that the Government were going to introduce the Human Rights Act in 2000, we realised, as others did, that it would affect two other major techniques. One was what RIPA called “direct surveillance”, which means following people and observing them—walking and moving around behind them, seeing what they do from static or mobile surveillance. The other was the recruitment and deployment of covert human intelligence sources to collect information on them. We realised that those two techniques, which I would suggest are less intrusive than the first two, were not specifically authorised in law. I am proud that in the security service we argued very strongly that we needed a legislative base for those techniques—and, I might say, in the face of some opposition—in what then became RIPA.
Perhaps the House will forgive me for repeating that. Just to talk about surveillance broadly can confuse. There are various levels of intrusion and, I would argue, various levels of authorisation may be appropriate for them. Unlike some of the police witnesses, I believe that RIPA has worked well. It has not worked well on angles such as local authority-it has been interpreted
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I would caution against having higher levels of authority for the lower levels of surveillance. I would regard, for example, that having court approval or prior judicial approval to follow someone would be unwieldy and unworkable, given the imperatives of speed and flexibility in fast-moving operations. I would not be surprised if, at some stage, judicial authorisation replaced ministerial authorisation, but that should be only for the most intrusive techniques and not for the low-level ones, otherwise the whole system will grind to a halt.
There are two of the committee’s recommendations that I wish to argue against. Paragraph 474 argues for “sufficient detail and specificity” in surveillance techniques. That can be interpreted in different ways, but it would be mad to alert those who threaten us seriously to the emerging capabilities of the state to be deployed in the most serious and high-level threats. The history of intelligence is like an arms race—a series of advantages for the state that are eroded as people become aware of those capabilities and the state has to move fast to keep ahead of them. For example, techniques to do with mobile telephony that we use today were unknown to the public 10 years ago, which gave a tremendous advantage in investigating terrorist crime. If we reveal those capabilities in too great a detail, they will cease to produce intelligence. I do not exaggerate—I am not one for hyperbole—but people will die as a result.
The other problem that I have in regard to national security, referred to in paragraph 477, is the suggestion that those subjected to surveillance should be told after the event, subject to the caveat that,
That would rule out the suggestion in most cases. The source of the information that triggered the investigation; the other individuals involved; the possible need for surveillance in future; the Article 1 rights of any covert human intelligence source involved who produced the information; the protection of foreign intelligence under the third country rule, which we will cease to get if we do not protect it—all those make that a difficult recommendation.
Finally, I believe that the public well understand and support the need for intrusive techniques where the threat demands it. When my former service approaches a member of the public to ask to sit in their bedroom for a week—or maybe three months—to watch somebody, when I would say, “Oh please not”, they say, “Yes”. If it is serious and important, the public support us in conducting those operations. But what they and I, and other Members of the House, are queasy about is the spread of these technologies and approaches and the retention of data for things that fall outside the narrow
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It is entirely right that we should consider these things. The days when national security, as an issue, was very much hidden away and not discussed are over, and rightly so—but we must be careful in what we describe here and what the consequences will be if we do not narrowly interpret in the way I have suggested.
10.38 am
Baroness O'Cathain: My Lords, being a member of the Select Committee on the Constitution was the high point of my many years in your Lordships' House, and the document, Surveillance: Citizens and the State, was the high point of my time on the committee. It is customary to pay tribute to the chairman of the committee but, in this case, whether it was customary or not, I would pay fulsome tribute to the excellent, patient professionalism of my noble friend Lord Goodlad and to all members of the committee. The teamwork was excellent and the dedication was most marked, and I am sure that the report will stand for a long time as an example of how such work should be done. On every issue, there was a lot of humour alongside some very earnest discussion and debate. We had our sadnesses, too, as our chairman has already said, but this report is a lasting memorial to the fine work of those who have departed. It certainly was a great experience to be a member of the committee.
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